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September 17, 2010

First Prop 8 Amicus Brief Raises Walker's Orientation

Before gay marriage foes filed their first brief to the Ninth Circuit U.S. Court of Appeals seeking to restore Proposition 8, both parties agreed to open up the matter to amicus curiae briefs.

Who would have the first say? A guy named Robert Wooten who wastes no time in making things personal, at least for Northern District Chief Judge Vaughn Walker, who in August delivered the landmark ruling calling Prop 8 unconstitutional.

“If the allegation that Judge Walker is a homosexual is true, [then] he has a personal interest in the outcome of the trial” and should have recused himself, the brief states.

And with that, the speculation over Walker’s sexual orientation is now apparently for the first time part of the court record.

Walker has not discussed his orientation publicly. And for the duration of the Prop 8 trial, the parties had stayed away from the topic — at least inside the courtroom.

So will the judge’s personal life be relevant in the appeal? One of the chief opponents of the ban thinks not.

“It’s a ridiculous issue,” says San Francisco Chief Deputy City Attorney Therese Stewart, who said it’s like saying a black judge shouldn’t preside over cases involving discrimination or race or a female judge hearing gender issues.

Wooten, who provides no address, phone number or indication of group affiliation in his two-page, typo-laden brief, says homosexuality is a “moral issue” of public interest, which “negates the requirement of ‘standing’ in the matter.”

Comments

I'm not a lawyer, so maybe I'm misunderstanding something here. Is this just an argument they presented because they don't have any real arguments? First, this is at best speculative. But even if the Judge is gay, how does that prove bias in terms of the law itself. Moreover, this argument seems to infer that interpretations of law are based on sexual orientation. How is this any different from arguing bias in front of a judge who is African-American on race discrimination cases, or for that matter cases involving hate crimes. How is this different from arguing that a judge who is a woman is biased on cases involving gender discrimination or reproductive rights.

FIRST OF ALL LETS GET THE ANALOGY RIGHT "ITS LIKE A BLACK JUDGE FOR THE FIRST TIME HEARING A CASE OF SEPERATE BUT EQUAL IN THE 1940". SECOND GET OVER IT A FED JUDGE AND OTHER JUDGES BRING THEIR HUMAN EXPERIENCES TO THE BENCH AND SOMETIMES THEY INFLUENCE THEIR DECISIONS I.E. THATS WHY SUPT CT NOMINATIONS ARE POLITICAL. I BELIEVE THE STANDARD IS "AN APPEARANCE OF A CONFLICT" AND THE ANSWER IN THIS CASE IS YES.

In this case, being either straight or gay could be termed a bias by the other side -- which means that if this challenge goes through as portrayed, nobody would be able to preside over the case.

More the question would be whether he has shown any clear bias -- yeah or nay on gay issues. If not, then his orientation should not be an issue. In any case, this is going to an upper court, so both his orientation and even his decision are mostly moot. Most important (as he intimated) is the record on file.